SUPREME COURT RULINGS

The Vicarious Liability Rule Applies To Unlawful Harassment on All Covered Bases

In Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1198) and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles:

1. An employer is responsible for the acts of its supervisors, and

2. Employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

To accommodate these principles, the Court held that the employer is always liable for a supervisor's harassment if it culminates in a "Tangible Employment Action." However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements:

a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and

b) the employee unreasonably failed to take advantage of any preventive or corrective opportunity provided by the employer or to avoid harm otherwise.

And, employers are responsible for their Spanish-speaking employees to understand the same policies. Corte Hispana's training programs are designed to reach these employees in Spanish so they will understand the laws and their responsibilities.